Thursday, April 30, 2009

An article in the Houston Chronicle a few days ago told the story of Gary Alvin Richard, who was convicted of a rape and robbery in 1987. Richard has spent 22 years behind bars for what is now clearly a crime he did not commit. New blood-typing tests and recently-unearthed (withheld evidence, in this case) prosecutorial misconduct solidify that conclusion.

Both sides are asking a judge to overturn his conviction.

A jury convicted Gary Alvin Richard in a 1987 attack on a nursing student in a trial based largely on blood-typing evidence from the Houston Police Department crime lab. But, prosecutors and the defense attorney agree, new tests completed Friday show that an [Houston Police Department] analyst misled jurors at Richard’s trial and failed to report evidence that may have helped him.

Based on the new tests, both sides will ask a judge next week to release Richard on bond while they sort out what happened in his case...

Richard’s case abounds with issues common to wrongful convictions. Among them:

The victim identified him some seven months after the attack. HPD crime lab analysts came to conflicting conclusions about the evidence, but reported only the results favorable to the case. Physical evidence collected in what is known as a “rape kit” has been destroyed, a victim of poor evidence preservation practices, leaving nothing for DNA testing now.

Richard's case is of many that have come to light since the Houston Police Department initiated a review of past cases in October of 2007. That review was spurred "days after DNA evidence cleared Ronald Taylor of sexual assault in a case where HPD analysts performed faulty tests on body-fluid evidence." Kudos to Houston for reviewing its past cases with some genuinely desire for justice, but this episode also serves as a reminder of the importance of getting things right the first time.

Wednesday, April 29, 2009

Last year, the Denver Post (which no longer has a print edition; whither the newspaper), did a weeklong series on preservation of biological evidence, where they highlighted, among other things, the woes of the evidence preservation efforts leading up to and after Hurricane Katrina.

It is easily the best one-stop shop on this issue and has lots of cool videos. I encourage you all to check it out.

Derrick Williams is serving a life sentence for a rape he says he didn't commit. The Innocence Project of Florida has taken an interest in his case and was in the process of investigating further about the possibility of testing a crucial hair when they were notified that the evidence has been destroyed. In fact, it was destroyed several years ago along with the evidence for as many as 4,000 other cases.

The reason? One of the evidence vaults for the Manatee County Sheriff's Office suffered a flood that led to an infestation of mold. Several thousand cases' worth of evidence was destroyed in 2003 – without the knowledge of the public defender's office or the lawyers for those inmates whose cases were affected. Now that the Sheriff's Office is moving the remaining evidence to a new storage facility, they are taking the opportunity to destroy as much surviving evidence "as legally possible."

Sheriff's Office spokesman Dave Bristow blew off any concerns about the impact this might have on those cases at issue. He said, "These were cases that had already gone through the system, or ones where the chances of solving them were slim and none."

I count three outrages.

First, why is evidence in Manatee County being stored in a place where it is even possible to be flooded? It's not often that the Gulf of Mexico lurches inland several hundred feet. If this were the result of a hurricane, it might be understandable, but it apparently wasn't. Store vital biological evidence inland. Store it in a cool, dry place. Store it in a waterproof chamber. Store it off the ground level. Or face justified accusations of negligence.

Second, it took the Sheriff's Office six years to come clean about the destruction of this evidence. That, in itself, is reason to believe that if the Innocence Project of Florida had never made an inquiry into Williams' case, we would never know what happened to his – or the other – evidence. When did they plan to tell the lawyers for these inmates, or the inmates themselves? Since they let it lapse for six years, it doesn't seem like the loss of evidence in 4,000 cases was a big deal for them.

Third, it's crassly irresponsible to ignore the post-conviction possibility of exoneration for these affected cases. Frankly, it's unacceptable to write them off as if the book has been closed on them and then destroy evidence that you are, by law, required to preserve. We know in at least one of the cases that Manatee County might have had an exoneration on its hands. And on top of that, it appears it was flat out not true that these were all case-closed: "Some of the destroyed evidence was also from unsolved cases, including homicides. Sarasota Police recently made an arrest in a murder from 30 years ago based on DNA and fingerprints from evidence collected at the crime scene."

Update from Seth Miller: I count a fourth outrage. It appears that they are destroying more evidence as they move to a new storage facility. In 2006, the Florida Legislature amended the post-conviction DNA testing law to require evidence-holding agencies to preserve physical evidence that may contain DNA for the length of the sentence or for at least sixty days after an execution in a death penalty case. Are they destroying evidence that could still have biological evidence on it despite the mold? Are they destroying evidence that they deem not to matter anymore that wasn't damaged by the flood? These key questions need be answered.

Take, for example, the case of the court and police evidence rooms for Orleans Parish, which were completely flooded and left to mold in the summer heat of New Orleans after Hurricane Katrina. New Orleans is under sea level to begin with and practically the only thing that was kept under ground were the evidence rooms at the court and the police department. The rising waters affected both old and new evidence.

There are major problems with the way the local authorities handled the evidence as the New Orleans police removed evidence from that room, let it dry out in a dry place, and then simply put it back in the once moldy room. But the court, at least, removed the evidence, did not destroy any of it, and now stores the evidence in a climate-controlled facility well above ground. Additionally, defense, prosecutor, law enforcement, and court officials have come together to think about better ways to preserve evidence so it can maintain its integrity for future use and be easier to locate. As messed up as New Orleans is today, over three years since Katrina, the Manatee Sheriffs could learn a thing or two about how handle natural disasters and avoid destruction of evidence in the future.

Tuesday, April 28, 2009

The ABA Journal Blog picked up the St. Pete Timesabout IPF which ran on Monday. We blogged about the article here. The ABA Journal blog post is nothing special as it is just an overview of the original article. What interested me was an exchange between two commenters to the post.

An attack:

Okay, so he “insists” he is innocent, just like he always has.

What does the judge in the case think? Is there any concern for the thoughts of the jurors?

I think we need to start a Guilt Project to counter this group.

The response from a Ryan:

Great idea, but the Guilt Project already exists. In every case, it’s called The State.

I know I've been harping quite a bit on the death penalty these last few weeks, with the developments in New Mexico, Colorado, and elsewhere, but reading this quote from Change.org really tickled me:

Only two murders in 1,000 are punished by execution. If you believe the death penalty is a deterrent, don't forward this post to a potential murderer - they might figure out that the chances of lethal injection are slim, and then who knows what they'll do.

Pointing out very well what any of us could discover by reflection: criminals are oftentimes not rational agents – and the worse the crime, we might think, the more genuinely deranged they are. Why do we think we might succeed in guiding their decision-making process?

William Dillon to Speak at Rotary Club Event in West Palm Beach, FloridaMr. Dillon Spent 27 Years in Prison Before DNA Testing Proved His Innocence

William Dillon, who was wrongfully convicted of a 1981 murder and served 27 years behind bars before DNA evidence demonstrated his innocence, will be speaking at a Rotary Club event in Wellington, Florida, on Thursday, April 30. In November 2008, The Innocence Project of Florida (IPF) worked to obtain DNA testing that proved Mr. Dillon’s innocence. Since his exoneration, Mr. Dillon has become an advocate for criminal justice reforms and has spoken on previous occasions about the harrowing experience of serving out his wrongful incarceration.

“Mr. Dillon is being awfully brave by sharing his story with other people,” said Seth Miller, Esq., Executive Director of IPF. “You can see when he speaks that it’s not easy for him. It is a traumatizing experience to be locked up for so long for something you know you didn’t do.”

When DNA testing showed that Mr. Dillon could not have contributed the DNA found on a crucial piece of physical evidence, his murder conviction was overturned. One month later, the State announced they would drop the charges against Mr. Dillon. Mr. Dillon’s 27 years in prison equals the longest time served before a DNA exoneration.

IPF worked with Mr. Dillon’s public defender, Michael Pirollo, Esq., to obtain DNA testing. Ms. Montle, a Staff Attorney for IPF who worked on Mr. Dillon’s case, will be joining him at the event.

“I’m really proud of Bill for coming out and doing something like this,” said Ms. Montle. “He knows how important it is to reform the system to prevent wrongful convictions from happening. Since he was released, he has been tirelessly working to help solve this tragic problem in America’s criminal justice system.”

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

Monday, April 27, 2009

[Mark Wallheiser, Special to the St. Petersburg Times] Innocence Project of Florida executive director Seth Miller and lawyer Bobbi Madonna meet with associates on potential cases. In the background is the whiteboard used in weekly lectures given to law school interns.

The process is a lot like sifting for gold. Of the 3,000 inmates who have asked for help since the office opened six years ago, 90 percent have received rejection letters. Rarely do the lawyers find someone like Wilton Dedge or Alan Crotzer, both wrongly convicted of rape.

Ironic turn of phrase – since we certainly don't want to compare innocent people in prison to gold, being a good thing in any way, but sifting and deciphering and contemplating are all appropriate ways of imagining the process.

Friday, April 24, 2009

Just two things in today's roundup, but both troubling developments concerning how the right to counsel is observed and respected. For one, just yesterday,

The Constitution Project’s National Right to Counsel Committee released its much-anticipated report, Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel, today at an event held at Arnold & Porter LLP. The report details the endemic and systemic failures of the indigent defense system and recommends twenty-two specific and urgently needed reforms to fix them. The full report and other relevant materials are available online here.

Meanwhile, with unintentionally ironic timing, the Obama administration is making known its very worrisome stance on the right to the assistance of counsel. Simple Justice has a very good post here on the importance and history of this right. The post begins this way:

There isn't a competent lawyer in the practical blawgosphere who hasn't warned defendants to remain silent and invoke their right to counsel. Immediately. Every time. No matter how smart you think you are, or what they say to you to get you to talk. Don't do it.

The rule of Edwards v. Arizona is that once a suspect has invoked right to counsel, the police cannot continue to interrogate in the absence of counsel, and the defendant cannot un-invoke his right to counsel without an attorney present...

None of this seems like striking constitutional law today, yet there is a move afoot to change it. This alone might not be terribly shocking, but for the fact that the move comes from the Obama Department of Justice and Solicitor General Elena Kagan.

Thursday, April 23, 2009

Per the Innocence Project's blog today, "A bill passed by the Texas Senate this week would provide an avenue for prisoners to challenge convictions based on discredited forensic science." They reference a story in the Marshall News Messenger that begins,

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant...

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

In December 2008, we worked to overturn Jimmy Ates' conviction, based largely on fraudulent FBI bullet lead analysis. Since then, the National Academy of Sciences has issued a scathing report, decrying the sorry state of forensic science labs around the country.

We know well how junk science can contribute to a wrongful conviction – indeed, the Innocence Project in New York says that junk science contributed to over half of the nation's first 225 DNA exonerations. We applaud steps like these being taken in Texas, and hope that a new incredulity toward and accountability regarding forensic science will spread to other states and jurisdictions.

American Heritage School to “Bowl for the Innocent”Innocence Project of Florida Plans to Attend Event

On Friday, April 24, American Heritage School will host “Bowl for the Innocent,” an event planned to raise funds for innocent people who have been released from Florida prisons. The Executive Director of the Innocence Project of Florida, Seth Miller, Esq., plans to attend. This is the second year in a row the school has helped victims of wrongful incarceration.

“This event is just one way we try to reach out to the community and spread awareness about wrongful convictions,” said Miller. “The fact that this was organized by a couple of students is really remarkable, and we’re impressed by their passion for this cause.”

Students will “Bowl for the Innocent” at AMF Davie Lanes in Davie, Florida, near Fort Lauderdale. Plans include an afternoon of bowling and refreshments, including pizza, soda and cake.

“This issue is something that matters to everyone,” added Miller. “The more people hear about innocent people in prison, the closer we get to reforming the system to prevent wrongful convictions. This event – even though it’s light-hearted and fun – is an important contribution to the cause.”

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

Wednesday, April 22, 2009

We were sent this video by Unicorn 8 Productions of the vigil held outside the correctional institution in Raiford, Florida, on February 11, 2009, as Wayne Tompkins was executed. We postedextensively about Tompkins back in early February of this year. He was found guilty of murdering Lisa DeCarr in 1983, though serious doubts regarding his innocence persisted up to and after the day of his execution. The Innocence Project of Florida is working to obtain DNA testing in his case. Test results could show Tompkins to be the first person ever executed and then conclusively exonerated posthumously.

Tuesday, April 21, 2009

Troy Davis was convicted of murdering a Savannah, Georgia, police officer in 1989. Since then, seven of the nine eyewitnesses who testified against him at trial have either recanted or contradicted their testimony. Still, Davis sits on Georgia's death row.

On Thursday, the 11th Circuit denied Davis' request to file a second habeas petition. However, Davis was originally scheduled to be executed in October of 2008. His execution has been stayed again, for another 30 days, to give him time to prepare an appeal to the Supreme Court of the United States.

From Change.org:

Troy Davis faces execution for the murder of Police Officer Mark MacPhail in Georgia, despite a strong claim of innocence. 7 out of 9 witnesses have recanted or contradicted their testimony, no murder weapon was found and no physical evidence links Davis to the crime. The Georgia Board of Pardon and Paroles has voted to deny clemency, yet Governor Perdue can still exercise leadership to ensure that his death sentence is commuted. Please urge him to demonstrate respect for fairness and justice by supporting clemency for Troy Davis.

In a 2-1 decision, the court held that Troy Davis could have presented most of his new evidence earlier and that the evidence did not offer clear and convincing proof of his innocence. Hence, the court did not consider his free-standing claim of innocence on its merits, but concluded it was barred because of the delay in filing. . . Judge Rosemary Barkett dissented, saying, "The concept of punishing an innocent defendant with the penalty of death simply because he did not file his papers as early as he should have is draconian. . . . where a defendant who can make a viable claim of actual innocence is facing execution, the fundamental miscarriage of justice exception should apply and AEDPA’s procedural bars should not prohibit the filing of a second or successive habeas petition."

Wednesday, April 15, 2009

SentLaw has a good post this morning titled, "Sixth Circuit concurrence talks about capital punishment's economic costs." They excerpt an Ohio judge's concurrence in a case that deals with capital punishment; his decision gives insight and analysis of the issue from a judge's perspective. It's a tad bit long for an excerpt to post here, but an extremely interesting and important read:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

“I was very pro capital punishment at the time,” he said. “I wouldn’t take it off the books now. There are cases that probably deserve it. But generally speaking, life without parole is more palatable.”

Cooke has said as much at legal gatherings.

“I did a lecture for an advanced criminal law course where all the top lawyers in Texas come together every year,” Cooke said. “They had me talk on the death penalty, and I raised some strong objections to it. That was the first time I know of that a judge had spoken out about it. I look at it with a little more critical eye than when I started.”

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efﬁciency of state and local crime labs and other forensic facilities.

[...] Nearly ﬁve years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Ofﬁce of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

Monday, April 13, 2009

In the wake of the former Sen. Ted Steven's conviction, election loss, vacation of his conviction, and dismissal of his charges for good, we learn that the federal judge in the case is simply appalled at the depths to which the prosecutors went to obtain the conviction against Stevens. From the Washington Post:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

Introducing false evidence? Check. Withholding exculpatory evidence? Check. Mishandling witnesses? Check. So now these rogue prosecutors are being investigated, as they should be, and this investigation may lead to criminal charges and eventual prison time if convicted. Way to go justice system.

So while the talking heads and political hacks are vilifying these prosecutors and trumpeting this is as a vindication of Stevens, this situation begs some important questions that the traditional media seems unwilling to touch:

How come we don't get the same remedial reaction to prosecutorial misconduct when the criminal defendant is somethone other than a seven-term US Senator or a wealthy lacrosse player? How come people are executed every year in this country despite equally, or even more compelling meritorious claims of misconduct by prosecutors?

Answering these questions would get to the heart of the imbalance and inequality that exists in our criminal justice system. It's an uncomfortable conversation, one that will inevitably get into race and class issues, as well as cause people to view the State's role in criminal prosecutions in a more skeptical way. Despite all this, it is a conversation our criminal justice system so desperately needs.

Many would be surprised to know that discipline of Florida prosecutors for misconduct is virtually unheard of, and criminal sanctions for misconduct is not something that has been entertained in Florida in run-of-the-mill criminal cases. Some of these are almost assuredly death cases, where the stakes are highest to get a conviction, which often leads to the highest incidence of misconduct.

So while we say to Judge Sullivan that it is is about time someone holds the prosecutorial community to task for misconduct that is hurting (and possibly responsible for wrongfully convicting) defendants and tainting the otherwise ethical work of others in the prosecutorial community, such action needs a broader reach within the criminal justice system.

On this point, just today, the Justice Project, out of Washington, DC, issued a report on the prevasiveness of prosecutorial misconduct within the criminal justice system and what to do about it.

Friday, April 10, 2009

Witch Hunt airs this weekend on MSNBC. Set a reminder for Sunday at 10 PM!

Public defenders in Chicago, their coffers depleted, are now asking a judge to dismiss a death case. TalkLeft relays, "Without money to retain expert witnesses for their client who has serious mental issues and is facing the death penalty for a double homicide, they can't provide an adequate defense and comply with the Sixth Amendment's requirement of a fair trial."

I once heard an argument from a public defender against cutting the budgets of their office. More specifically, they were protesting the cuts to the PD's office as part of "across the board" budget cuts. Across the board cuts seem fair on their face, except for when the lawyer pointed out that endangering the accused's right to defense challenges his Constitutional rights in a way that cutting his access to education or healthcare doesn't. Although it's an uneasy conclusion, I find it hard to argue with.

GenPop.org tells us about the job cuts that corrections officers around the country are facing:

It seems like every State is laying off or cutting the wages of corrections workers. This is bad not just for the workers themselves, but for inmates and inmates' families. If the prison population remains the same but the number of correctional officers is cut, the remaining officers are going to have a harder job and be under more stress and stressed out cops running a prison is a very bad thing. Article after article keeps popping up about these layoffs and wage cuts.

Kudos to the C.I.A. for closing its secret prisons and kicking out contractors. Operating black sites hidden from public scrutiny and entirely unaccountable – not to mention the activities that allegedly went on inside – represents a staggering effacement of American values.

On Tuesday, IPF received the good news that the Florida Supreme Court sent the case of Thomas Wyatt, a death-row inmate, back down to the trial court for a new hearing on the Comparative Bullet Lead Analysis issue and the jailhouse snitch issue in Mr. Wyatt's case.

This was particularly important because they instructed the lower court to have a hearing on whether the CBLA testimony given at trial against Mr. Wyatt sufficiently prejudiced his trial given the fact that the FBI issued a letter recently saying that its testimony was false and not supported by science.

This ruling preserves the case-specific FBI letters as the paramount newly discovered evidence in these CBLA cases.

One is Witch Hunt, which has been popping up quite a bit in my Google Reader lately. The documentary tells the stories of regular people who were wrongfully accused, convicted, and sentenced to prison for horrific sexual crimes that they never committed:

Executive Producer Sean Penn presents "Witch Hunt," the story of John Stoll and dozens of other men and women who found themselves ensnared in a spiral of fear, ignorance and hysteria. These working-class moms and dads were rounded up with little or no evidence, charged and convicted of almost unimaginable crimes. Years later, they would find freedom again, but their lives would be changed forever.

Witch Hunt will air on MSNBC this Sunday, April 12, at 10 PM.

The second documentary is Dhamma Brothers. Dhamma Brothers follows the inmates of Donaldson Correctional Institution near Birmingham, Alabama. Donaldson became the first prison in the nation to conduct an extended Vipassana retreat, which entailed physically and emotionally demanding Buddhist meditation for ten days. It bears some striking similarities to Unit 25 (Unidad 25), which I blogged about before, about a prisoner who trades the "customary horrors" of prison for embracing Christianity while on the inside. It's fascinating to see these stories told about a spiritual awakening that takes place inside prison, and the profound effects it can have on inmates.

At least, these stories are a variation on the trite tale of the convict who "finds Jesus" or converts to Islam inside prison: spirituality in the big house is nothing new, except for when it's told in a whole new way in these films.

Ecuador is demanding the return of one of their citizens from Florida’s death row because they maintain he was taken from Ecuador illegally. The inmate, Nelson Serrano Saenz, is a dual citizen of the U.S. and Ecuador. Ecuador says he should have never been taken from their country by Florida officials, calling the arrest a “kidnapping” and accusing the U.S. government of physical maltreatment of Serrano as well. Ecuador does not have the death penalty and will not extradite fugitives who face the punishment in other countries. ''The issue is not his guilt or innocence,'' said Deputy Ecuadorean Interior Minister Franco Sanchez. ''This is called a kidnapping, not an arrest.'' U.S. authorities maintain that they did nothing improper and that Serrano’s dual citizenship status allowed them to bring him back. The Organization of American States, to which both countries belong, has since recommended the case to the Inter-American Court of Human Rights in Costa Rica, after first finding that Ecuador had illegally detained and deported Serrano.

Ecuador has not received an official response from the U.S. State Department to their letter and announced they plan to present the letter to the Florida Supreme Court, where Serrano's appeal will likely be heard later this year. The Ecuadorean government also has hired a Miami-based immigration attorney to replace Serrano's court-appointed lawyer.

Wednesday, April 8, 2009

When Governor Bill Richardson abolished the death penalty in New Mexico, he called it the most difficult decision of his political career.

Now, Judge Charlie Baird in Texas has handed down a decision he has called "the most important of my judicial career." Timothy Cole was convicted in 1985 for the rape of Michelle Mallin and sentenced to 25 years in prison. Cole died in prison in 1999 for a crime that DNA evidence has since proven he didn't commit, and yesterday he was officially posthumously exonerated in Texas. Judge Baird's decision is available here.

Judge Baird said, unequivocally, "the evidence is crystal clear that Timothy Cole died in prison an innocent man, and I find to a 100 percent moral, legal, and factual certainty that he did not commit the crime of which he was convicted." Judge Baird also went on to fault police misconduct, including the deliberate misrepresentation and suppression of evidence for Cole's innocence during the investigation.

Perhaps most tragic is that, since 1995, four years before Cole died in prison from complications from asthma, Jerry Johnson had been admitting his guilt for the rape of Michelle Mallin. From Judge Baird's decision:

Worse, however, was the attitude of the courts to [the actual rapist Jerry] Johnson’s claim of guilt. As early as 1995- four years before Tim Cole died- Johnson tried to clear Tim Cole and admit to the rape of Michelle Mallin. His letters were ignored, set aside, and thrown away until one was received by the family of Tim Cole and the Innocence Project of Texas.

We're glad that this sad story is coming to an end – that the family of Timothy Cole is receiving some sort of justice in the clearing of their son's name. We hope the criminal justice system can look to Timothy's case and ask itself, "What can be done to make sure this never happens again?"

Tuesday, April 7, 2009

On Thursday, April 2nd, the Innocence Project of Florida, along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA). The press release we posted earlier is now available for download by clicking here, or you can read the brief we filed by clicking here.

Some interesting numbers that show that, though Governor Richardon's stroke of the pen was unquestionably a moral victory, the simple fact was that New Mexico wasn't a particularly death-happy state like, say, Texas or Virginia:

Since 1979, in New Mexico:

211 death penalty cases filed

203 were resolved by the end of 2007

9 cases were dismissed before trial

47.8% of the resolved cases ended with a plea bargain and a sentence less than death

46.9% of the resolved cases went to trial

25% of the resolved cases had a penalty trial

15 people were sentened to death

2 defendants remained on death row still challenging their death sentence

Monday, April 6, 2009

You'll have to forgive me, I was in Durham, North Carolina this last weekend for the Full Frame documentary film festival. There were scores of intensely beautiful and moving films there, several that focused on human rights concerns around the world. But there were two in particular that are appropriate fodder for the blog:

The Visitors follows a bus-full of women who travel from New York city upstate to visit their loved ones in prison every weekend. It was a powerful portrayal of love, devotion, and loneliness, as one of the women remarks, "I'm doing my time, too."

Unit 25 (Unidad 25) follows Simon Pedro, an Argentinian convicted of stabbing a man. What makes Simon's story interesting is that he has the right to choose where he will serve out his sentence. His family convinces him to choose Unit 25, which gives prisoners "relief from customary prison horrors" in exchange for their embrace of Christianity while in prison.

Miguel Roman was exonerated in Connecticut after serving 20 years for a murder DNA now proves he didn't commit. He's the 235th person exonerated by DNA testing nationwide.

The Connecticut legislature's judicial committee voted to approve a bill to abolish the death penalty in that state. The bill will be sent to the floor for a vote. Connecticut and New Hampshire are the only two states in New England that still have the death penalty.

SentLaw reports that Ohio's death row is getting smaller, noting that the row shrunk by 15 people last year, either through executions or successful appeals. Related to that, Brett Hartmann was scheduled to die tomorrow in Ohio for a murder, but his execution was stayed. The three-judge panel that granted his reprieve specifically mentioned that they were awaiting the outcome of Osborne in the Supreme Court, which will determine whether inmates have the right to post-conviction DNA testing.

Finally, as you probably already know, Iowa's Supreme Court struck down the state's ban on gay marriage as unconstitutional. (File this loosely under Constitution and it's okay to blog about it here.)

Thursday, April 2, 2009

IPF was recently appointed as the "point" office for coordinating work in Florida cases where the FBI provided false or misleading trial testimony related to Comparative Bullet Lead Analysis (CBLA). In this role, we filed an amicus curiae (friend of the court) brief in a death penalty case to assist the Florida Supreme Court in its review of a CBLA issue in that case and others that will come in front fo the court as we move forward.

IPF Urges Court to Allow Defendants to File for New Trial Based on FBI Junk Science

Today the Innocence Project of Florida (IPF), along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA).

For over forty years, the Federal Bureau of Investigation (FBI) performed CBLA, which purported to be able to "match" bullets found at a crime scene to bullets linked in some way to criminal defendants (i.e., bullets found at a defendant's home). In its most egregious form, CBLA was used to show that the two sets of bullets were manufactured at the same time or even came from one particular box of bullets. In other cases, the FBI told juries that two bullets came from the same batch of lead at the same factory, without also telling them that as many as 35 million bullets may have also been made from that same batch of lead.

"When an FBI expert told a jury that they could link a bullet from a crime scene to a single box of bullets owned by a defendant, the jury surely believed it," said Bobbi Madonna, Staff Attorney for IPF. "What they weren't telling juries is that this conclusion was not at all based in science and should have never been allowed inside a courtroom." The FBI in 2005 discontinued the use of this procedure. A 2007 exposé conducted by 60 Minutes and the Washington Post showed that FBI agents often grossly exagerated the probative value of its CBLA conclusions at trial, which almost certainly misled juries and tainted verdicts.

"There had been some criticism and some skepticism developing about CBLA," noted Seth Miller, Executive Director of IPF. "But despite these criticisms, the FBI stood by their technique and their baseless conclusions until very recently."

In 2008, the FBI partnered with a Joint CBLA Task Force with the purpose of investigating every case in which they provided CBLA testimony. They have so far identified roughly 1,500 cases natiowide where CBLA testimony was presented at trial and have analyzed 156. Of those 156, the FBI has admitted to providing misleading testimony to the jury in 96 of them. The FBI began issuing case-specific letters in mid-2008, admitting that its agents provided improper testimony that likely prejudiced the trial. A disproportionate number of those letters--20 of the 96 total letters sent thus far--were issued to Florida inmates.

Under Florida law, an inmate not on death row has two years from the time that "new evidence" comes to light to file for a new trial based on that evidence. For death-row inmates, that window shortens to just one year. IPF wants the court to find that an inmate's clock for presenting a CBLA-based claim should "start running" when they receive their individual letter from the FBI, rather than choosing an earlier time when generic criticisms of CBLA began surfacing.

"What the Joint Task Force is doing is tremendously important. These letters are the product of their work and they mark the first time the FBI has acknowledged that they gave false testimony in individual cases," said Miller. "The ongoing unprecedented collaborative efforts between the FBI and other innocence organizations around the country to right these wrongs will only have value if the court provides the recipients of these letters the chance to prove that the FBI's false testimony tainted their trials."

Jimmy Ates, an IPF client and one of the 20 Florida men whose cases were tainted because of this false CBLA testimony given by the FBI, had his conviction overturned in December 2008 based on one of these letters from the FBI disavowing the testimony.

Wednesday, April 1, 2009

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.